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Introduction

While a Last Will and Testament is often considered the backbone of a complete estate plan, a Living Will is essential in spelling out your end of life decisions. If at any point you're unable to communicate your wishes---because you're in a coma or because a doctor has diagnosed you as being incapable of doing so---a Living Will allows your family and physicians to rest assured that your own personal choices are being respected.

Use a Living Will if:

  • You want to specify your wishes so that it is more likely they will be carried out.
  • You are facing the possibility of surgery or a hospitalization.
  • You want to create a complete estate plan.
  • You have been diagnosed with a terminal condition.

Other names for a Living Will:

Living Will Form, Advance Health Care Directive, Advance Directive, Advance Medical Directive.

A Living Will is different from a Power of Attorney:

Both a living will and a durable healthcare POA allow you to choose someone you trust to make certain medical choices on your behalf. You must be at least 18 to create either document and you must be of sound mind. That means no one is allowed to coerce you into making a living will or healthcare power of attorney.

But while a living will is generally limited to deathbed concerns only, a durable power of attorney for healthcare covers all health care decisions. It lasts only as long as you are incapable of making decisions for yourself.

Since a living will generally covers very specific issues like "DNR" (or "do not resuscitate"), it may not deal with other important medical concerns you might have. For example, some people may want to refuse dialysis or blood transfusion, and those sorts of concerns can be directly articulated in a healthcare power of attorney. This is why it's often a great idea to have both documents in your estate plan.

Who to appoint as your Living Will agent:

While you'll be responsible for setting out your wishes in your living will form, selecting an agent to enact these wishes when you're incapable is an incredibly important choice. In nearly every state, this person will have to be a legal adult, aged 18 or over, and this person will have to act in accordance with your wishes. That's a key point: they will not be making your decisions for you (like they might in a power of attorney), but they will need to make certain that your wishes are carried out as you set them down.

That means you'll want to have a frank discussion with this person before you choose them. Are they comfortable with your decisions? Do their religions beliefs allow them to carry out your wishes? Make sure you and your agent are on the same page about these issues.

Also, be sure your agent is, above all else, mature and responsible. Carrying out the healthcare decisions of a friend or family member is no easy task. Keep in mind you can (and should) select an alternate agent in the event your primary agent cannot be reached or is otherwise incapable of enacting the choices you've made in your living will.

When to update your Living Will document:

Living wills are usually updated for the same reasons as a last will and testament, namely after important life and family events. For example, you may have selected a spouse as your agent but now you've now divorced.

Another reason you may need to update your living will is if you've moved. Depending on where you're settled, some states don't accept living wills from outside their borders. Some states may require more witnesses when signing, perhaps.

To update your living will, it's generally advised that you simply create a new one. Our step-by-step living will interview can guide you through the process and our living will form contains language that invalidates your previously legal living will.

What happens if your physician refuses to act on your Living Will:

This is a rare occurrence, but it does happen. Your physician may have certain ethical or religious reservations about following the choices you've laid out in your living will document.

To avoid any issues, it's best to provide your primary physician with your living will before it's needed. Talk through your choices and understand what medical treatments are available. Make sure your physician is willing to follow your requirements. If not, your physician may be under an obligation to transfer you to a doctor who is.

Other names for a Living Trust

Inter Vivos Trust, Revocable Living Trust.

How Living Trusts Work:

First, you'll need to create a trust and transfer ownership of some of your property to the trust. When doing so, name yourself (and your spouse, if you so choose) as trustees. This means that you'll retain control of the property. Then, in your Living Trust, name the beneficiaries you want to receive this property after your death. Appoint a competent and responsible "successor trustee" to handle the distribution of this property.

Living Trust v. Will:

One of the most common questions people have when they're creating an estate plan is "what's the difference between a Living Trust and a Will?" You should know that while laws do vary state to state, there are a few important differences to keep in mind:

  • Living Trusts help avoid probate The probate process can be costly and can significantly cut into the property and assets you leave your heirs. While creating a Living Trust is a bit more difficult than making a Will, it doesallow your heirs to avoid probate, thereby keeping more of your assets and getting those assets much more quickly.
  • A Living Trust is private: Wills are, in the end, public documents. A Living Trust, on the other hand, is not. If you have certain assets you'd like to keep private or if the idea of your last wishes becoming public isn't something you're comfortable with, a Living Trust might be right for you.
  • Transfer of property: Both a Will and a Living Trust allow you to transfer property. In a Will, you simply name the property. In a Trust, however, you must make certain to transfer that property into the trust. You may still use the property in question while you're alive, but you won't technically be the owner, since you've placed it in a Trust.
  • Notary Public: In some states, you don't need the presence of a notary public when signing and witnessing a Will. But for a Trust, you do. Make sure your Trust is legal by signing it with a certified notary.
  • Guardianship: You cannot name a guardian for your children in a Living Trust. To do so, you must use a Will. This is why parents of small children often create both documents with the help of a trained estate planning attorney.

Revocable vs. Irrevocable Trusts:

The most common types of Trusts are Revocable Living Trusts. This means, simply, that you have the right and the ability to nullify the Trust itself and either create a new one or use other estate planning documents to organize your affairs. An Irrevocable Trust, on the other hand, is a much more complicated document, generally created by those with a lot in the way of assets. Although it's never a bad idea to have an estate planning attorney look over your Trust, it's especially important if you're going to make your Trust irrevocable.

Other estate planning documents:

A Living Will is just part of your estate plan. Here are some other documents you might need:

If you have any questions about what's right for you and your business, we can connect you with a lawyer for quick answers or a document review. For more information about estate planning, visit Rocket Lawyer's Estate Planning Guide.

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